“Duty is as Duty Does.”

While I do not normally report on PCAs, my excitement over this one got
the better of me.

In October of 2013, my partners, Don Fountain and Hampton Keen, obtained
a verdict in excess of $11,000,000 against Continental Tire for our client,
Tracey Parker, her first-grade teacher husband, Ed, and their three sons.

Continental insisted that Mrs. Parker had been operating her vehicle on
a flat tire for thousands of miles. It cast blame against
Fabre defendants GM, and Mr. Parker himself.

On October 1, 2015, in
Continental Tire the Americas v. Parker, 4D14-113, Fourth District Court of Appeal Judges Ciklin, May and Forst
per curium affirmed the jury’s decision reached after three weeks’ of
trial, and which followed six intense years of litigation.

Notably, Continental never offered the Parkers a single penny to settle
the case before (or even during) trial.

IN A PCA WITH SPECIAL CONCURRENCE, JUDGE DISCUSSES DUTY OF SHERIFF AND
APPLICATION OF SOVEREIGN IMMUNITY IN WRONGFUL DEATH CASE.

This case was actually a PCA–but Judge Makar provided a detailed
special concurrence, which explained the facts and analysis.

In the wee hours of the morning, a 37-year old, emotionally disturbed woman
who had previously been Baker Acted, called the police for assistance
at her apartment. She told the dispatcher that she had purchased a gun,
and needed help unjamming it. When the deputy arrived, she told her the
same story, said she was not familiar with the gun, was using it and cocked
it, and could not un-cock it, so she took the gun outside and discharged
one round into her laundry basket. She advised the deputy she was afraid
that if there was any crime, someone would think it was she who did it.

The officer unjammed the gun, left it on the table, and the woman promptly
fatally shot herself in the head.

In bringing a wrongful death case, the estate sued, arguing the Sheriff
breached a duty by creating a risk to the woman, which proximately and
foreseeably resulted in her killing herself.

The Sheriff moved to dismiss, arguing the decision about whether to arrest
an individual is a discretionary one, and that he was immune from tort
liability. The estate argued its case was not based on a failure to arrest
theory, pointing instead to the case of
Wallace v. Dean, where police deputies responded to a 911 call, and found the woman completely
unconscious and unresponsive. Rather than summoning assistance, they assured
concerned neighbors that the woman was not in need of medical attention,
and departed. She died several days later.

The supreme court in that case observed that because the deputy had undertaken
to respond to the 911 call, engaged the decedent, and completed a safety
check, it left the decedent in the “zone of risk” by not doing
anything, so the court found there was a duty owed.

The court then explained that the safety check was an operational “professional
and general service” for which governmental tort duty did apply.

In this case, the estate argued that the deputy had undertaken to assist
the decedent, having chosen to assist her in unjamming her gun, making
it operable, so that the Undertaker’s Doctrine applied. The deputy
then had to perform that task in a non-negligent manner.

The Sheriff responded that the deputy only had a general duty to the public
at large absent a special relationship, and therefore, no duty existed.
Because the call was not an emergency involving an individual who was
in obvious medical distress and in need of attention, the Sheriff distinguished the
Wallace case.

In his concurring opinion, Judge Makar agreed this situation was similar to
Wallace. He observed that a duty can still arise whether the call for service
is urgent or not. He then wrote that a call that is not “urgent,”
may seem to even make claim of “service” stronger.

Because there was little discussion about the immunity issue in the briefs,
however, Judge Makar ruled with the majority and agreed that the court
had to defer to the trial judge and affirm his conclusions. The court
relied on the presumption of correctness as to the immunity issue, because
the plaintiff failed to rebut it.

The concurring opinion really seems to support the idea that a duty
did exist–at least at the dismissal stage, but that the case was affirmed
due to lack of argument regarding immunity.

ERROR TO ENTER DEFAULT AS SANCTION FOR DEFENDANT’S NON-COMPLIANCE
OF TRIAL COURT’S ORDER DIRECTING HER TO FILE AN ANSWER, WITHOUT
AFFORDING HER AN OPPORTUNITY TO BE HEARD AND SHOW THAT THE NON-COMPLIANCE
WAS NOT WILLFUL OR IN BAD FAITH.

The trial court granted the defense motion to dismiss either because the
defendant was entitled to immunity under Work. Comp., or because in an
earlier settlement, there was a release of the defendant by the plaintiff.

However, because resolution of both of these issues required the court
to make factual determinations outside of the pleadings, such a ruling
was error and the court reversed and remanded for the judge to consider
the issues by way of summary judgment or an evidentiary hearing.

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